Federal Courts and Nominations

5 tips for Sotomayor before her Senate hearings

WASHINGTON Beginning Monday morning, Supreme Court nominee Sonia Sotomayor enters the most perilous stretch of her path to confirmation as she goes before the Senate Judiciary Committee for three to four days of testimony.

Sotomayor will be greeted by many friendly faces among the 12 Democrats on the committee. But she also will be confronted by seven Republicans who will try to trip her up, pin her down and push her over the edge into a mistake.

Despite the widespread view that President Barack Obama’s nominee will be confirmed because the Senate is controlled by his party, Sen. Jeff Sessions (R-Ala.), the committee’s ranking Republican, warned Friday that she still can be derailed.

“You often have events that occur at hearings that do change the dynamic in a significant way,” he told Fox News.

Here are five things Sotomayor can do to avoid skidding off track in her bid to become the first Latina on the Supreme Court.


“You have a great life story: Keep telling it.”

That was the first piece of advice that Ken Duberstein, Ronald Reagan’s White House chief of staff, offered Sotomayor after she was nominated.

Her compelling story – rising from a Bronx housing project to attend Ivy League schools and succeed as a Puerto Rican woman in the legal world – can trump fights over legal issues.

The most important audience is the viewer at home, Duberstein says. Senators will watch the public response very closely, as they did in rejecting Robert Bork and in approving Clarence Thomas.


In her opening statement Monday, Sotomayor must lay out the themes and message of her testimony, and she must stick to them for the next two or three days of questioning.

That is what Chief Justice John Roberts did in his hearings, invoking the metaphor of judge as baseball umpire, impartially calling balls and strikes.

But Doug Kendall, president of the Constitutional Accountability Center, said, “She should one-up John Roberts and say that judging is not done by automatons.”

Her message should be about “what all Americans see as the goal of the legal system, and that’s justice,” he said. Justice requires not just following the law, but relating it to people.


Despite her resume of attending Yale Law and serving as a federal judge for 17 years, Sotomayor still must prove she has a mastery of the law.

That’s especially true since conservatives have complained that on the 2nd Circuit Court of Appeals she often issued unsigned brief opinions and summary orders – which she must explain is the circuit’s custom.

And because Republicans are questioning whether she can be impartial, she must show she can explain arcane detail about the law and Supreme Court precedents, without giving away her own views of them.


In tapes and transcripts of her in action as a judge, Sotomayor shows she can become so engaged in a case that she can be aggressive, to the point of being overbearing.

She’s even been called “a bully” by a few attorneys who have appeared before her.

So despite whatever provocation or bait that Republicans dangle, Sotomayor must be calm. She must try to come off not only as levelheaded and evenhanded, but as responsive and helpful to her questioners as possible.


With the presumption that Sotomayor will likely be confirmed, both Republicans and Democrats have said they intend to use the hearings as a “teachable moment” to promote their vision for what the Supreme Court should be.

As Sessions put it in an op-ed Friday, “We must have a national discussion about the role of a judge and what kind of justice we ought to place on our nation’s highest court.”

This, Kendall said, will create a two-level fight during the hearing: one over Sotomayor’s nomination, another over the future of the court.

Sotomayor should stick to her own battle, and avoid at all costs getting drawn into the partisan fight the senators most likely will wage.

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